IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120904

Docket: 14660

Registry:
Nelson

Between:

Curtis Brechin

Plaintiff

And:

Maurice Pickering,
Deceased

Defendant

And:

Insurance
Corporation of British Columbia

Third
Party

Before:
The Honourable Mr. Justice McEwan

Reasons for Judgment

I

[1]            
The plaintiff is a journeyman electrician. He lives in Castlegar,
British Columbia. On March 23, 2007, he was a passenger in a motor vehicle that
was struck by another vehicle on Highway 3, about 15 kilometres east of Grand
Forks, British Columbia. The defendant died in the accident. There is no issue
as to liability for the collision.

II

[2]            
The plaintiff was born February 2, 1969, and grew up on a small farm in
the Fraser Valley. His father worked full time as an electrician, while the rest
of the family ran the farm. The plaintiff graduated from high school in 1987
and worked for a time for his father. He then attended a Bible School in
Austria and travelled and skied in Europe. He returned to his father’s business
and worked with him on residential and small commercial projects. The plaintiff
subsequently relocated to Whistler and worked there for about two years. He
then returned to the lower mainland and lived at home while he worked for another
electrician, in a business called Dueck Electric. The plaintiff started as a
helper then took his apprenticeship, sponsored by his father, becoming a
journeyman electrician at the age of 24 or 25.

[3]            
The plaintiff continued to work for Dueck Electric for some time after
he qualified as a journeyman. During that time he suffered a lower back injury,
lifting a rototiller, which caused him to go off work for a period of time.

[4]            
The plaintiff was still on disability when a friend persuaded him to
relocate to Nelson. He saw Petra Lehmann, a physiotherapist in Nelson, and felt
able to get back to work after a series of treatments. He then started up his
own business, Brechin Electric, working mostly on residential projects. He did
not have a staff, although there was one person who worked as a helper at
times.

[5]            
The plaintiff was happy to be back at work and says he had no trouble
with the physical demands, although he found running his own business stressful.
He ultimately decided to join the union hall to see if he could get work on
some of the larger industrial projects in the Kootenays. He began to get calls
from the union and found it more and more awkward to try to manage a small
business at the same time, so he phased out his business.

[6]            
Through his union work the plaintiff got to know Mark Pelletier. He
worked a number of industrial jobs mostly for Martech, a large local contractor,
on projects at Teck Cominco, at the Selkirk College Campus in Nelson, and at
Celgar in Castlegar. He said he got called out quite often because his work
ethic stood out. He was hired as a foreman on a 10 month job at Mt. Sentinel
High School between Nelson and Castlegar. He also worked on a project for Fortis,
the local power company. There were periods of down time, between projects,
however.

[7]            
In 2004 during one such down period, the plaintiff moved back to
Abbotsford for several months. He subsequently got a call about a large
expansion Fortis was undertaking near Brilliant, B.C. He moved back up and
lived with Mr. Pelletier. The plaintiff liked the Fortis jobs, which involved
quite a bit of heavy work and work in awkward places. He was working initially
for Martech Electric at a Fortis site, the Brilliant Dam. The job lasted around
9 months and until the fall of 2005.

[8]            
In the meantime, Mr. Pelletier had gone to work for another contractor,
Ridgeview Electric. Mr. Brechin went there shortly after he left the Dam
project. Mr. Brechin said that on this job he was basically working for
Mr. Pelletier on a small crew of 3 or 4 men. The large project Ridgeview was
working on ended in the spring of 2006, but Mr. Brechin said he and Mr. Pelletier
were kept on afterwards for a time, doing smaller things. Mr. Pelletier was
working more on the “business” side. They were both off work for a period of
time and living together when Mr. Pelletier was approached by Martech to take a
managerial position. Mr. Pelletier did and Mr. Brechin assumed his role
with Ridgeview.

[9]            
During this time Mr. Brechin met Mary-Lou Castellarin and moved in with
her in an area north of Trail called Rivervale. The Ridgeview work was
sometimes solitary and sometimes involved crews of one or two. This was work on
large industrial electrical installations. Mr. Brechin was engaged in this work
up until the accident on March 23, 2007.

III

[10]        
On the day of the accident Mr. Brechin and Ms. Castellarin were
travelling to Vancouver to attend a professional hockey game. They left before
noon and agreed that Ms. Castellarin would drive the first leg of the trip. Mr.
Brechin said he was “dozing”. He recalls approaching Christina Lake east of
Grand Forks, and his next recollection was of Ms. Castellarin screaming and the
airbag deploying. The vehicle left the road and ended up in a ditch upside down.
Mr. Brechin didn’t know what had happened. He recalls being concerned about the
other driver. He remembers other people at the scene, including a doctor who
went down to the other vehicle. An ambulance attendant told him that the other
operator had died.

[11]        
Mr. Brechin and Ms. Castellarin were taken to the hospital in Grand Forks
in separate ambulances. Mr. Brechin knew he had hit his head and his knee. He
was experiencing some ringing in his ears. He and Ms. Castellarin were released
from hospital later that day, and had a friend drive them back home.

IV

[12]        
The next day Mr. Brechin was experiencing neck pain, and went to his
doctor. The neck pain went down into his shoulders. Mr. Brechin was concerned
about work. He contacted his boss and went in to work on the basis that he would
not be able to do any physical work. After a short time it was clear Mr.
Brechin could not continue even on that limited basis because of his neck pain.
He took some time off.

[13]        
Mr. Brechin started massage therapy with Steve Verigin. He thinks he
improved somewhat over a period of a couple of months.

[14]        
While Mr. Brechin was still off work an opportunity came up with Fortis.
Mr. Brechin found this very attractive. He felt he could not go back to
Ridgeview because the work was heavier. Fortis offered a chance of working up
to a permanent position. He says he discussed his options with Ms. Castellarin
and decided to give the Fortis opportunity a try even though he was still in
pain from his injuries.

[15]        
Mr. Brechin was first hired in April 2007, on a temporary basis. He said
working at Fortis was a learning experience. Within about a week postings came
up for full time positions. He applied for and got one of the positions along
with a man named Darcy Caron.

[16]        
Mr. Brechin said that Fortis was aware he had been injured and that some
accommodations had to be made for him. He went out on a field job at Crawford
Bay, replacing another electrician who was on vacation. Mr. Brechin tried to
book his appointments for ongoing treatment on Fridays and at other times when
they would not interfere with his work. He worked at Crawford Bay for the last
8 months of 2007. He found the heavier work aggravated his back, particularly
when he worked overhead. The work was lighter toward the end of the project.

[17]        
In 2008, Mr. Brechin took some compulsory training. He said that it was
slow from January – March most years and that it was important to upgrade. He
said some qualifications are only good for 2 years and must be renewed.

[18]        
Later that year Mr. Brechin got a chance to run his own project at
Playmor, between Castlegar and Nelson. He had one or two people helping him and
was “on the tools” 80% of the time and doing administrative things about 20% of
the time. This was easier on his neck and back. He found it possible to avoid
heavy lifting or extension. He said the work was not too demanding.

[19]        
Mr. Brechin said he worked full time throughout 2008, and was not off
much. He said most of the time the work was local so he was home in the
evenings.

[20]        
Mr. Brechin said that outside of work he socialized less and did less around
home. He was still with Ms. Castellarin and both struggled with the effects of
their injuries. He said some chores like getting wood for their wood burning
stove were difficult and they hired people to help out. Household chores were
more difficult and he cut out occasional recreations like golf. Although he
socialized less, he acknowledged that that he was “pretty private” and did not
socialize a great deal before. He was less active and thinks that if he had
felt better he would have done more camping, fishing and skiing as well as playing
more golf. He says he had started to take an interest in snowmobiling but that
he did not take it up because of his injuries.

[21]        
Mr. Brechin recalls seeing Dr. Craig in November of 2008, to check the
range of motion in his neck.

[22]        
Mr. Brechin said that in 2009, he took a summer vacation with Ms. Castellarin,
down the Oregon Coast. He said there was a lot of driving but that he generally
felt well until he got back, when he began to experience severe neck pain. He
said he struggled at work with this pain and that his supervisor, Scott
Bartlett was aware of his problem. He said he was fortunate to get a lighter
job overseeing a civil job in Kaslo. After that site had been excavated and
prepared, Mr. Brechin had to do some more physical work, laying pipe. He
stayed at it for about a week then found himself in serious pain. He saw his
doctor and subsequently went on Short Term Disability.

[23]        
Mr. Brechin was off work through the late fall and did not return until
February 2, 2010. When he went back, the Kaslo job was still going but
another person was leading the team, so Mr. Brechin went back as a journeyman.

[24]        
Mr. Brechin and Ms. Castellarin split up in March. Mr. Brechin moved
into a 23’ camper trailer he owned. He had met Shelly Mihalynuk in Kaslo while
he worked there and they commenced a relationship that was ongoing at the time
of the trial. Mr. Brechin and Ms. Mihalynuk attended a 2 day rock festival in
Ohio that spring and went on a camping and fly fishing vacation in August and
September. Mr. Brechin said that handling the boat was hard on his neck. He had
a more serious episode of pain after lifting a battery.

[25]        
Mr. Brechin says his work at Fortis was manageable and he was doing well
with minimal pain. The project he was working on was at Coffee Creek and he was
spending most of his evenings in Kaslo.

[26]        
Before the battery lifting incident Mr. Brechin says his sleep had been
good. Afterwards, he was having difficulty with pain in his rotator cuff and
neck radiating down into his arms. He sometimes experienced tingling in his
fingers. He continued to see Steve Verigin, for relief whenever he could get in
to see him.

[27]        
Mr. Brechin was also seeing James Leithead a physiotherapist in Trail,
when he could get in to see him. Because of the distance to Trail, he decided
to see Petra Lehmann in Nelson again, since she had effectively relieved his
symptoms when he had first moved to the Kootenays. He found that her treatment was
not as effective the second time.

[28]        
Mr. Brechin went to Mexico for Christmas and did nothing physical. He
said his neck was really bothering him and he started to experience anxiety.

[29]        
After his vacation Mr. Brechin went right back to work at Coffee Creek
where there were still some project deficiencies to address. He began to have
serious anxiety attacks. He saw Dr. Wallace, a psychologist, about these
problems.

[30]        
Mr. Brechin did not miss any work, however. When the Coffee Creek job
ended around April of 2011, he moved around somewhat. He said there was one big
project at Creston that started that summer. He was the lead on that job. He
still had problems whenever he did anything physically strenuous.

[31]        
Mr. Brechin participated in jobs in Creston, Grand Forks and Cascade. To
the extent he is able to do administrative jobs he is reasonably well, but he
says he has neck pain whenever he does anything strenuous. The last of his jobs
finished at the end of October and he was able to take his banked time and
vacation time and remain off work for the rest of the year.

[32]        
In January of 2012, Mr. Brechin went back to work. He was able to
perform some strenuous work but still had to be very careful.

V

[33]        
Mr. Brechin says that as far as his future prospects are concerned,
electrical work is all he knows. He says he loves the work at Fortis and
prefers industrial to residential or commercial electrical work. He does not
particularly aspire to management, although he would be open to it later in his
career. He hopes to work until at least the age of 55.

[34]        
In cross examination Mr. Brechin said he liked working at Fortis better
than working for himself. At Fortis the work gets left behind when he goes home,
but that had not been the case when he worked for himself. He also said
management jobs at Fortis do not end at 3 pm whereas jobs working on the tools
do. He would rather work the tools than go into management but said he would
consider management because of his health.

[35]        
Mr. Brechin acknowledged that he put “Excellent Health” on his Fortis
application form although he was having symptoms at the time. He said Fortis
was nevertheless aware of his difficulties.

[36]        
Mr. Brechin acknowledged that Petra Lehmann had advised him to do more
aerobic exercise but that he had gone to Mexico right afterward and done
“nothing”.

[37]        
Mr. Brechin went through his tax returns. He acknowledged that Fortis
has been a good career move for him. The principal difference between Fortis
and working out of the union hall is that Fortis is steady work. He said union
work would pay somewhat more if it were steady.

[38]        
He identified his claim for special damages for $614.00.

VI

[39]        
Shelly Mihalynuk testified that she works for Precision Drilling which
is camp work. She lives in Kaslo. She met Mr. Brechin when he was working in
Kaslo in the fall of 2009. She said they have been seeing each other for a
couple of years and had gone away together in May of 2010, to a concert in
Ohio.

[40]        
She said she sees Mr. Brechin and spends days at a time with him but
that they still maintain separate residences. She said that she notices that
Mr. Brechin stretches a lot and cranks his neck a lot. She says they do not
engage in much physical exercise when they are together but that they eat well
and watch movies. She went to Mexico with him in January 2012, and said they
had taken a number of road trips to Spokane and to Kelowna to see a doctor.

[41]        
Ms. Mihalynuk said that Mr. Brechin does not like driving and that she
more frequently goes to see him than he goes to Kaslo. She described Mr.
Brechin as a tense person who can at times be very angry. She has witnessed his
“panic attacks”. She said his work is very important to him, and she notices
his condition changes depending on whether he is sitting in the trailer or out
on the tools. She has seen him rubbing his neck and observed him to be
irritable on days when he has been working with his arms elevated. He has
trouble sleeping. She says he seeks treatment when he is sore.

[42]        
In cross-examination, Ms. Mihalynuk said that although she and Mr.
Brechin had been dating for 2 years, they were not physically intimate very
often. In redirect she said she thinks she can help him with his anger when he
is stressed. She said he is very sedentary when he is not working and is a
loner.

[43]        
Darcy Caron testified that he has worked at Fortis since 2006. He worked
in a temporary position at first and then an opportunity for full time work
came up in 2008. He and Mr. Brechin had lived together and worked on projects
together before he got on at Fortis. When he was hired full time, Mr. Brechin
applied and was hired as well.

[44]        
He described Mr. Brechin as a very good worker who was very thorough.
Mr. Caron has been the construction manager for Fortis’ Kootenay Substation
since March of 2011. Mr. Brechin works in his crew. Mr. Caron is now a
management employee and does not work “on the tools”. He describes Mr. Brechin
as a good employee. He is aware of Mr. Brechin’s health difficulties and says
he is kept apprised of his appointments. He explained the effect of an absence
on small crews of two or three people. He said there was a job Mr. Brechin was
unable to do earlier in February. He said Mr. Brechin had taken three or four
sick days off already this year (2012). He explained that there are
opportunities for Mr. Brechin as a crew lead a position where 30% of the work
is administrative, and requires less physical effort.

[45]        
Mr. Caron’s supervisor, Mr. Scott Bartlett has asked for Mr. Brechin to
have an assessment of his physical condition because of the number of sick days
he has taken. The results were not known at the time Mr. Caron testified.

[46]        
In cross examination Mr. Caron said that in previous years Mr. Brechin’s
sick time had not been an issue. He had taken 8 or so days a year, but he said
the higher number in early 2012 was a cause of concern.

[47]        
Scott Bartlett testified that he has worked for Fortis for 17 years. He
is presently a Project Manager. He hired Mr. Brechin in 2008, along with Mr.
Caron. He knew them from a number of temporary employments, and knew they had
ability and experience. He is personally acquainted with Mr. Brechin’s work and
considers him a good employee.

[48]        
Mr. Bartlett explained the difference between crew leads and project
leaders. Crew leads are temporary whereas a project leader is appointed for the
duration of a particular project. A crew lead is on the tools some of the time
while a project leader is off the tools.

[49]        
Mr. Bartlett recalled that Mr. Brechin was sometimes on sick leave
depending on the physical demands of the job. He said that Fortis tried to
accommodate him with light duties.

[50]        
Mr. Bartlett said when he was promoted to project manager he stopped
working with the plaintiff, and Mr. Caron became his supervisor.

[51]        
Mr. Bartlett said that Mr. Brechin was appointed a project leader
because he could do the job although his physical issues was a consideration.

VII

[52]        
Mr. Brechin’s work history since 2002, shows the following earnings
pattern:

VIII

[53]        
Mr. Brechin was referred by counsel to a Physical Medicine and Rehabilitation
specialist in Nelson, Dr. William Craig, on November 4, 2008. At that time Dr.
Craig noted that Mr. Brechin had seen his own physician, Dr. Jane Grey, and
taken massage, and physiotherapy for his complaints of injury, and that he had
also undertaken counselling for “symptoms suggestive of post-traumatic stress
disorder.” He noted that he was initially off work for 1-1/2 months. He noted that
his symptoms at that time as follows:

Current Symptoms: Mr. Brechin symptoms vary in intensity with
acute flairs. He had significant neck and shoulder pain for many months after
the March 23, 2007 accident. He reported almost immediate onset of
numbness going from the lower neck down to the left 4^th and 5^th
fingers. These symptoms settled but he had two acute flares. The first was when
he was doing some prolonged overhead work on a power line. The second was when
he was wiring modules and was in a prolonged flexed position. Symptoms have
primarily been on the left but he has had them on the right. At present he
reports no symptoms in his arms.

 He describes stiffness in the neck. When his neck acutely
flares the pain starts in the upper shoulder blade region with referral down
between the shoulder blades and up to the neck. Symptoms are primarily on he
left but he has had episodes involving the right. Symptoms are provoked with
repetitive work, prolonged flexion or working overhead. By the end of the day
he reports generalized neck stiffness, which can be relieved by flexing
forward. He notes a cracking sensation down his neck with this motion and some
relief of his symptoms. He reports being tight in the region between the
shoulder blades.

He denies any headaches at present.

He denies any knee symptoms or
low back symptoms at present.

[54]        
Dr. Craig described his examination. He gave the following opinion of
“causation” and “prognosis”:

Causation:

Neck pain:
It is my opinion that Mr. Brechin had a moderate soft tissue injury, and
possibly a cervical disk injury, as a result of the March 23, 2007 accident. He
has had what sounds like episodic cervical radicular symptoms from the neck
injury from the March 23, 2007 accident.

Shoulder
pain: It is my opinion that Mr. Brechin had a mild to moderate soft tissue
injury to the shoulder girdle as a result of the March 23, 2007 accident.

Knee pain:
It is my opinion that Mr. Brechin likely had a soft tissue injury to the
left knee as a result of the March 23, 2007 accident. According to the note
from his family physician March 26, 2007, Mr. Brechin had bruising and tenderness
along the left medial knee joint line. These symptoms have resolved.

Anxiety:
I would defer comment to a psychologist or psychiatrist.

Prognosis: Mr. Brechin is now 18 months out from the March
23, 2007 accident. There were some initial issues with anxiety surrounding the
accident. He is not reporting significant issues with this at present, but I
would keep an eye on it. If such symptoms become more prominent, particularly
if he starts reporting problems with his sleep, then this should be addressed.
Further counselling would be an option.

In terms of prognosis for his arm and neck symptoms I would
defer comment until I have had the opportunity to review further imaging of his
neck. Overall I feel that the prognosis is good, as his symptoms have decreased
over time. My overall impression is that although symptoms have lessened, he is
at risk for repeat aggravation if he were working for a prolonged period of
time overhead or flexed.

I do not see any limitations in his ability to perform his
activities of daily living or with golfing.

I would have some concern about
him re-aggravating his injuries if he were to be doing a more physical job such
as what he was doing prior to the March 23, 2007 accident. He is at
increased risk of prolonged recovery if he were to re-injure his neck.

[55]        
Dr. Craig saw Mr. Brechin again in his office in North Vancouver on May
19, 2010. He described Mr. Brechin’s history as follows:

Medical Course: Mr. Brechin reports no new medical
diagnosis since my last assessment on November 24, 2008. He has not been in any
additional motor vehicle accidents since the March 23, 2007 accident.

Mr. Brechin reports that he was doing well, until September
of 2009. He returned from holidays. Two days after returning, his neck
stiffened up. He returned to work the following day. He noted increasing
symptoms over the day. He restarted physical therapy and had some
accommodations made at work. As the intensity of his work increased, he began
to develop increasing neck pain and sensory symptoms in the right arm. He had
planned on attending physical therapy but was unable to, due to his work
schedule. He eventually had to go off work in late November. He started a
course of physical therapy and massage therapy. This helped with his symptoms
significantly, and he was able to return to work by February 2, 2010 and has
now returned to full duties.

He had a recent flare in the last week to two weeks. He has
returned to physical therapy and this is starting to settle his symptoms. At
present his symptoms are primarily his neck and right upper and posterior
shoulder.

Functional History: He continues to work as an
electrician. He reports his present job as being relatively light. He is wiring
modules. His next job will change. He will be doing more overhead and underground
work.

He has returned to doing all his activities of daily living
and work around his property. When his neck and right shoulder pain is flared,
he is unable to do yard work such as mowing the lawn. He has not returned to
golfing, which he did regularly prior to March 23, 2007 accident. He is
concerned that golfing will flare his symptoms, as it has in the past when he
attempted to return to it.

Current Symptoms: He has periods where he is pain
free. Over the last week he has had a return in his neck and right shoulder
pain.

He describes pain at the base of his neck with associated
spasm in the right upper trapezius. There is referral to the region between the
shoulder blades. When acutely flared, he has pain going down the back of the
arm as far as his fingers. He has associated sensory symptoms of variable
distribution in hte hand and forearm. He denies any referral of pain into his
chest. He denies any associated weakness in his right shoulder or upper limb.
Symptoms are typically aggravated by overhead work, and extending his arm and
shoulder forward. He is somewhat able to relieve the discomfort in his neck by
flexing forward through his entire spine. When he does this, he feels popping
in his neck and upper back. He has occasional headaches associated with his
neck and shoulder pain.

Since my last assessment he has
had an episode of difficulty focusing his eyes. This lasted approximately 10
minutes. He apparently had an extensive workup including a CT scan of his head.
He saw his Optometrist, who felt that his episode was a migraine.

[56]        
The results of a CT scan and an MRI were described:

Reviewing of Imaging: CT scan of his head March 5,
2010 was unremarkable. X-rays of his cervical spine April 13, 2007 revealed
degenerative disk disease at C5-6 with minimal spurring including the
uncovertebral joints.

He had an MRI of his neck on May
19, 2010. This revealed right sided spurring and disc bulges at C5-6 and C6-7
with possible compromise of the right C6 and C7 roots.

[57]        
Dr. Craig described Mr. Brechin’s condition under “causations” and
“Prognosis” as follows:

Causation:

Neck Pain – It is my opinion that Mr. Brechin had a
moderate soft tissue injury and a likely cervical disk injury, as a result of
the March 23, 2007 accident.

Right Arm Symptoms – It is my opinion that the right
arm symptoms relate to C5-6 and C6-7 disc bulges from the March 23, 2007
accident with resulting episodic C6 and C7 radiculopathies.

Shoulder Pain – It is my opinion that Mr. Brechin had
a mild to moderate soft tissue injury to the right shoulder girdle, as a result
of the March 23, 2007 accident. His present symptoms are referred from his
neck, and a secondary response to his neck issues.

Knee Pain – It is my opinion that Mr. Brechin likely
had a soft tissue injury to his left knee, as a result of the March 23, 2007
accident. These symptoms have resolved.

Anxiety: I would defer comments to a psychologist or
psychiatrist.

Prognosis:

Mr. Brechin is approximately 3 years out from the March 23,
2007 accident. He is likely reaching his point of maximal medical improvement.
He has had appropriate treatment to date. There are a number of treatment
options to address his acute flares. From review of the history with Mr.
Brechin, these acute flares appeared to be becoming less frequent. I would
expect that over time this will continue to be the case, with decreasing
frequency and severity of flares.

During his asymptomatic period, I recommend working with a Kinesiologist
to develop an exercise program. He has likely plateaued with his current
treatment program and needs some progression. I would avoid starting this in
the acute period or the month after an acute flare.

I see no limitations in his ability to perform his activities
of daily living or household tasks. The latter would be limited during one of
his acute flares.

He is at increased risk of premature degenerative changes in
his neck and requiring neck surgery or injections, due to injuries from the March
23, 2007 accident. He would be at increased risk of a work related neck injury,
due to his neck injury from the March 23, 2007 accident. He is at risk of a
more prolonged period of recovery, if he were to have another neck injury, due
to injuries from the March 23, 2007 accident.

His time off work has been appropriate.

Mr. Brechin has been able to return to his prior employment
in his full capacity. I would expect that long term, he should be to continue
working as an industrial electrician. He may have periodic flares that require
accommodations by his employer, some time off work, and episodic physical
therapy to address the acute flares.

I am not recommending any further
investigations as they are unlikely to alter management.

[58]        
As previously noted, Mr. Brechin was treated by various therapists for
relief of the injuries he associates with the accident. He saw Steven Verigin,
on March 27, 2007, and a number of times afterwards for treatment related to
the accident. Mr. Brechin had been seeing Mr. Verigin earlier in March
2007, on the 7th and 14th for a complaint of pain in his lumbar spine relating
to a previous motorcycle injury.

[59]        
When Mr. Brechin first attended Mr. Verigin for treatment following the
accident he complained of neck and upper back pain, shoulder pain and pain into
his right arm. He saw Mr. Leithead, a physiotherapist in Trail on April 18,
2007, complaining of right sided neck and lower clinical/upper thoracic
symptoms.

[60]        
The therapist’s records support Mr. Brechin’s evidence to the effect that
he has been able to continue to work with periods of discomfort associated with
the more strenuous aspects of his work. He continued to attend massage and
physiotherapy on an as-needed basis, sometimes getting in to see them when work
permitted, not always when he was symptomatic. Work is not the only thing that
provokes pain: Mr. Brechin said that he had a spontaneous flare-up following an
Oregon vacation in August 2007.

[61]        
Mr. Brechin took medical leave on March 5, 8, 11 and 15, 2010, and was
treated by Mr. Verigin and Mr. Leithead. He stopped seeing these therapists for
the summer months of 2010 which coincided with lighter physical work as a “project
lead” on a number of projects.

[62]        
In September 2010, Mr. Brechin suffered a strain while lifting a boat
battery on a camping holiday. Mr. Brechin resumed physiotherapy following this
incident. Mr. Leithead was in Trail and he started to see Petra Lehmann in
Nelson again. He began to experience anxiety in the fall of 2010 and the early
part of 2011.

[63]        
Mr. Brechin was a project lead until April of 2011, and worked as a crew
lead from June 2011 to October 2011. The more strenuous nature of the crew lead
work caused a number of flare-ups. He continues to see his physiotherapist.

[64]        
Although Dr. Craig’s view was the Mr. Brechin should be able to continue
working as an industrial electrician, Tatiana Petrov, a consultant occupational
therapist assessed Mr. Brechin on May 24, 2011, and reported on May 30, 2011,
that in her view that was not so. She summarized her screening and testing
results as follows:

The results of formal screening procedures in combination
with clinical observations indicate that Mr. Brechin passed the effort criteria
and therefore was found to be giving maximum voluntary effort in functional
capacity testing. Also, his reported level of pain and disability correlated
with the objective findings of the evaluation. The examiner, therefore, has
good confidence that the results reported below represent Mr. Brechin’s current
physical capacity.

The results of this evaluation classify Mr. Brechin for the
LIGHT Physical Demand Level by NOC standard (i.e. lifting, carrying, pushing
and pulling up to 22 lbs. occasionally during the work day) with the following
restrictions relating to the injuries he sustained in the MVA:

No frequent and/or sustained forward
reaching with the right arm

No frequent and/or sustained overhead
reaching with the right arm

No frequent neck flexion and/or
extension (i.e. sustained upward or downward gaze)

These findings confirm that Mr. Brechin
would currently not be able to safely work at his pre-MVA job of industrial
electrician on a full time basis. Mr. Brechin therefore has functional
limitations associated with the injuries he sustained in the MVA, which have
negatively impacted his overall level of employability (both in terms of
capacity and absenteeism). Mr. Brechin has since been hired by an employer
(Fortis) who has moved him into lighter work as a crew leader, where he is
usually physically working only about 25% of the time. Dr. Craig indicated in
his report of May 27, 2010, that as a result of the in neck injury of March 23,
2007, Mr. Brechin is at increased risk of premature degenerative changes in his
neck and of requiring neck surgery or injections, He also indicated that Mr.
Brechin is at increased risk of a work related injury and of a more prolonged
period of recovery if he were to have another injury. Any and all of these
would further reduce Mr. Brechin’s long-term vocational potential. He also has
restrictions in terms of his pre-MVA leisure activities.

[65]        
Mr. Brechin also attended Dr. Gordon Wallace, a registered psychologist,
on August 29, 2011 for assessment of his residual employability potential. Dr.
Wallace noted the following:

My psychological and vocational
test battery results indicate that Mr. Brechin has average intellectual
abilities with his present academic skills generally being consistent with a
secondary school education. His weaker academic skills are within the Reading
Comprehension area where it is noted that while he is slow at reading, he is an
accurate reader who has the necessary Vocabulary skills in order to increase
his overall reading abilities. His present Mathematical skills would be considered
equal to approximately the Grade twelve level. My assessment found that his
aptitude potential is likely an underestimation of his true capabilities with
him appearing to work in more of a slow but accurate manner. His measured
vocational interests were found to primarily be within the Realistic/Objective,
Enterprising, Directive, and Innovative general themes.

[66]        
Dr. Wallace, on the basis of Ms. Petrov’s findings, a reduced physical
capability made the following suggestions:

From a rehabilitation psychology perspective, it is my
opinion that Mr. Brechin’s reduced physical capabilities as documented by Ms.
Petrov would now exclude him from many occupational options that he could have
considered prior to the 2007 motor vehicle accident. Specifically, direct entry
occupational options such as a Supermarket Clerk, Janitor, Backhoe Operator,
Deck/Fence Builder, Siding Installer, Automotive Tire Servicer, Warehouseman,
Construction Helper, Road Maintenance Worker, Forestry Worker, Grounds
Maintenance Worker, Benchwork Mechanical Repairer, Foundry Labourer, Production
Worker, Airline Baggage Handler, Surveyor’s Helper, Brewery Worker, etc. would
require greater physical capabilities than those identified by Ms. Petrov.
Specifically, these positions would either require greater strength
capabilities or require forward reaching with the right arm, overhead reaching
with the right arm, and/or neck flexion and/or extension demands.

In regards to apprenticeship training programs, even
apprenticeable trades requiring light strength (such as Communication
Technician, Locksmith, Recreation Vehicle Repairer, Security Alarm Installer,
etc.) would still require an individual to use their right arm for frequent
and/or sustained forward reaching or overhead reaching as well as frequent neck
flexion and/or extension. It should be noted that the position of an Electrical
(more within the residential field) is considered a light strength
apprenticeship and that even within this area, he would not be able to meet the
physical demands requiring the use of his right arm as well as neck flexion
and/or extension.

From a rehabilitation psychology perspective, it is my
opinion that Mr. Brechin would likely be able to complete the physical demands
of occupational options accessed through completing formal educational training
programs. The major concern with such positions would be the need for neck
flexion when working at a desk. He therefore would likely require an ergonomic
assessment of any sedentary work station to ensure that it was set up to
decrease the amount of neck flexion required. However, the type of occupational
options that he could have considered through completing formal educational
training programs would generally allow him to alter his work posture form
sitting to standing and/or walking throughout the workday and would therefore
likely be better for him.

The additional concern regarding Mr. Brechin’s residual
employability potential is his psychological functioning. He is experiencing
increased anxiety as well as mood dysfunction subsequent to the 2007 motor
vehicle accident. While to date, these psychological concerns have not
negatively impacted Mr. Brechin’s ability to maintain ongoing employment, it is
my opinion that he is in need of treatment for them. The concern would be that
should these psychological issues go untreated, they could not only continue
but increase to the point where they could negatively impact upon his ability
to maintain competitive employment. Therefore, while it is my opinion from a
rehabilitation psychology perspective that Mr. Brechin’s psychological
functioning would not preclude him for presently continuing with competitive
employment, if left untreated, it does present increased risk for him being
able to meet the basic foundational skills required to engage in competitive
employment.

The decreased ability to complete all aspects of an
Industrial Electrician position would, in my opinion, decrease Mr. Brechin’s
competitiveness for not only ongoing employment within the electrical field, but
also for being able to enjoy promotional considerations. This concern is
addressed through the concept of presenteeism.

Presenteeism is a somewhat awkward term, but defined as a
measure of lost productivity cost due to employees actually showing up for
work, but not being fully engaged and productive manly because of personal
health and/or life issue distractions. Presenteeism lies on a work capacity
continuum between full employability with no limitations at one end to complete
unemployability as a result of not being able to meet the basic foundational
skills on the other end. This therefore would include individuals who are able
to maintain their employment (through meeting the basic foundational skills)
but are less productive in their work output. Individuals with these concerns
are, in my opinion, less likely to be promoted as compared with their
non-disabled counterparts. They would not be considered as valuable employees
as others who are able to be more efficient and versatile in their job duties.
It is my opinion that individuals with such concerns would be at a higher risk
for being let go from their positions should the employer need to adjust their
workforce.

To date, Mr. Brechin has been
fortunate to have alternative, less physically demanding positions available to
him through his employment at Fortis. While it is certainly hoped that this
will continue, should the company experience any alteration in its workforce
requirements, then Mr. Brechin’s reduced versatility to complete all aspects of
an Industrial Electrician position would, in my opinion, likely decrease his
attractiveness as an employee and therefore increase his risk of being let go.

[67]        
Dr. Wallace then discussed alternative careers and the educations costs
of a two-year retraining program at Selkirk College.

[68]        
These professionals were all cross-examined, which was helpful, but did
not in any case undermine the fundamental position taken by each witness. That
is to say their reports remain an accurate reflection of their overall contribution
to this case.

[69]        
The defence called evidence from Dr. N. Reebye, a physical medicine and
rehabilitation specialist. He examined Mr. Brechin on April 29, 2011.

[70]        
Dr. Reebye described Mr. Brechin’s condition as follows:

Mr. Curtis Brechin was a seat belted front seat passenger in
a vehicle that was involved in a head-on collision and which rolled over. There
was no loss of consciousness and no obvious cuts, bruises, bleeding or swelling
initially.

He has been experiencing aches and pains in different parts of
his body following the accident and they have recurred off and on over time.

Clinical examination at present is essentially within normal
limits.

The most likely diagnosis to consider in this case is that of
mild soft tissue injuries in areas of his body of initial aches and pains.

There is no evidence by history, initial clinical examination
and present examination to raise concern regarding more serious injuries like
torn muscles, damage to ligaments, intervertebral discs, nerves, or nerve
roots.

He also has minor degenerative changes in his spine. These
are common in his age group. They were no symptomatic previously and in my
opinion, they have not been affected by injuries sustained in the motor vehicle
accident of March 23, 2007.

Mr. Brechin had periods of emotional problems following this
accident and there was a question regarding post-traumatic stress, as it was
quite a serious accident and the driver of the other vehicle died at the site
of the accident.
He states that he has some concerns regarding driving but he does not feel that
he requires psychological or psychiatric help at this stage.

I will leave detailed discussion
regarding his emotional problems to the expertise of a psychiatrist or a
psychologist.

[71]        
He commented on his time off work:

Mr. Curtis Brechin took about 7 to 20 days off work soon
after the motor vehicle accident. In my opinion, this was reasonable.

He also took some time off work to go for therapies from
November 2009 until February 2010.

This time off work is less justifiable as being a direct
result of physical injuries sustained in the accident of March 23, 2007.

He has been working regularly. In my opinion, there are no
physical contraindications for him to continue working at the job he is doing
at present or at jobs that he did previously.

I do not anticipate permanent
physical impairments to occur as a result of injuries sustained by Mr. Brechin
in the motor vehicle accident or March 23, 2007.

[72]        
He said he did not anticipate permanent physical impairment as a result
of the injuries suffered in the motor vehicle accident. He recommended an
active exercise program with stretching and strengthening activities and
relaxation techniques. He saw no need to attend physiotherapists, or massage or
other passive therapists.

[73]        
Dr. Reebye appeared at the trial by video camera.

[74]        
On cross-examination Dr. Reebye suggested that Mr. Brechin’s disk bulge
was a common finding and was not necessarily linked to the motor vehicle
accident. He noted that fully healthy people can develop neck pain.

IX

[75]        
The overall impression the Court is left with on the evidence is that
Mr. Brechin is a capable electrician who has had experience in a range of
settings from residential to industrial projects, in business for himself, on
call out of the union hall, and lately as a permanent employee at Fortis. Mr.
Brechin’s evidence is to the effect that the position at Fortis offers a
near-optimal combination of stable employment and work that is, in its nature,
most interesting to him. It also offers long term prospects for advancement
into leadership roles that require less physical and more administrative
skills.

[76]        
Inasmuch as Mr. Brechin began working full-time for Fortis shortly after
the accident, the court must assess, in addition to damages for pain and
suffering and loss of enjoyment of life, whether or not damages are payable for
any loss of capacity in the future associated with the injuries that arose in
the accident.

[77]        
The plaintiff’s complaints of pain have persisted long after the
accident, and continue to be assigned to the motor vehicle accident despite
other events that seem to have brought on exacerbations of pain and some
incidents where the pain has not been associated with any specific activity.
The accident itself was a traumatic event but Mr. Brechin’s complaints of
anxiety are difficult to attribute directly to it, since they have been worse
in more recent times than they were immediately after the accident. Mr. Brechin
is not particularly voluble or descriptive, and his pre-accident circumstances are
not particularly well defined. He is taciturn, and there is not much “before
and after” evidence available. Ms. Mihalynuk’s evidence is helpful, but she has
only known Mr. Brechin in the time since the accident. Mr. Brechin’s work
acquaintances are of some limited assistance in this respect.

[78]        
What emerges from Ms. Mihalynuk’s evidence is a portrait of a person who
is rather self-contained, proud of his work and inclined to do very little on
his time off. His past working life has been somewhat sporadic, with periods
involving significant physical effort, punctuated by layoffs during which Mr.
Brechin does not appear to have pursued sporting or other recreational pursuits
with any particular vigour. Golf was identified as one of the leisure pursuits
affected by the injuries he suffered in the accident but he appears to have
played only occasionally in any event.

[79]        
Ms. Mihalynuk speaks of occasional outbursts of “anger” which
contributes to an over-all impression that Mr. Brechin is rather undemonstrative
and inclined to keep things inside, somewhat tense and occasionally anxious.
Mr. Brechin’s descriptions of his pain and of the way it comes, sometimes as a
result of strain, and sometimes with no apparent cause, create some reason for
doubt that what is being described is all accident related. Mr. Brechin does
appear to be highly conscious of his condition and to seek treatment rather
readily. I do not think the court has been left in a position where it is apt
to underestimate Mr. Brechin’s degree of disability if it accepts what he has
to say. It is not at all evident that he works through pain very well, although
it may be that Fortis’ accommodations have made it unnecessary to try.

[80]        
Mr. Brechin is now 42 years old in a setting in which he may retire in
15 to 20 years. There are significant physical demands in the work some of the
time, although as he continues to take leadership roles, he is likely to work
more often at a reduced level of physical strain. The primary concern for his
future is whether he will be able to continue to retirement without
interference from the effects of the accident.

[81]        
Dr. Reebye and Dr. Craig do not think the symptoms he is likely to
suffer will take him out of the work force. According to Dr. Craig, Mr. Brechin
may have an increased risk of degenerative changes in his neck, but apart from occasional
time off work and physiotherapy he does not consider further management
necessary. Dr. Reebye, whose report appears to be the result of a rather detailed
consultation, does not see a need for anything other than physical exercise and
improved conditioning.

[82]        
These opinions are at odds with the findings of the occupational therapist,
Tatiana Petrov, which is itself at odds with Mr. Brechin’s actual performance
on the job. Mr. Brechin’s history, before and since the accident, suggests that
he is vulnerable to stress in his neck or back and that he should avoid lifting
heavy objects like rototillers, at home or on the job. It appears that this
kind of work can be largely avoided at Fortis, either by accommodation or as
Mr. Brechin moves more often into more managerial roles.

[83]        
I accept that work at the heavier end of the scale ought to be avoided,
and that he could probably not stay in an occupation that demanded continuous
heavy labour. In the field in which he is employed, however, this does not
appear to be expected.

[84]        
I think it unrealistic, given Mr. Brechin’s age, aptitude and
personality to think in terms of the cost of two years at school to retrain.
Mr. Brechin’s likeliest option, were he to leave Fortis, would be to work out
of the union hall which he could take or not, depending on the physical demands
of each job. The other realistic possibility would be to go back to small job
residential work.

[85]        
I think the medical evidence suggests that Mr. Brechin was injured in
the motor vehicle accident and that he has suffered soft tissue injuries that
flare up against a background of a generally tense and anxious disposition, and
a degree of deconditioning related to his way of life apart from work, or a
disinclination to keep pushing his own limits. I accept that he is a valuable
employee and that he is competent at what he does. As time goes by, it gets a
little more difficult to see Mr. Brechin’s complaints as related to the
motor vehicle accident. I accept Dr. Reebye’s opinion on a qualified
basis. I do not think Mr. Brechin suffered a permanent injury as a result of
the motor vehicle accident, but I do think it contributes at times to the onset
of neck and shoulder pain.

[86]        
Counsel for the plaintiff submits that damages for pain and suffering
and loss of enjoyment of life should be fixed at $85,000, based on cases like Smusz
v. Wolfe Chevrolet Ltd., 2010 BCSC 82; Ghataurah v. Fike, 2008 BCSC
533, and Morlan v. Barrett, 2010 BCSC 1767.

[87]        
The defence has suggested that Mr. Brechin’s injuries are more modest.
Counsel has tendered Lamont v. Stead, 2010 BCSC 432. In that case
Bernard J. summarized the injuries as follows:

[34]  In relation to other aspects of Ms. Lamont’s pre-collision
health, I am not persuaded that the evidence establishes anything which might
reasonably account for the chronic neck pain from which she now suffers. The
medical evidence shows that the plaintiff has some degenerative disc disease
typical for women of her age. Prior to the collision, the plaintiff enjoyed a
very physically-active lifestyle and was mostly asymptomatic. Transitory
strains, aches, and pains are common among persons who engage in rigorous and
physically-demanding activities. When Ms. Lamont did suffer from symptoms which
were apparently attributed to DDD (in October 2004 and May 2006), they were not
the same as those of which she now complains; moreover, she quickly responded
to physiotherapy and experienced full recovery. The plaintiff’s post-accident
experience has been markedly different, notwithstanding physiotherapy and every
reasonable effort to recover and resume her pre-accident lifestyle.

[35]  In summary, I am
satisfied that the plaintiff’s pain is chronic, partially disabling, and likely
permanent. Similarly, I am satisfied that the evidence establishes that the
plaintiff’s neck pain was caused by the defendant’s negligence, in the sense
that it directly caused or materially contributed to it. There is a substantial
connection between the plaintiff’s chronic neck pain and the collision, and the
plaintiff has shown, on a balance of probabilities, that but for the negligence
of the defendant, she would not have chronic neck pain: see Resurfice Corp.
v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333.

The plaintiff in that case
was notably active before the collision:

[40]  The loss of enjoyment of life due to chronic
neck pain is undoubtedly greater for Ms. Lamont than it would be for a person
who has led a more sedentary lifestyle. Ms. Lamont has been actively engaged in
strenuous sport throughout her adult life, and this has been a significant
feature of life with her husband and children. It is, understandably, a source
of great frustration and sadness to her that she has been deprived of the
capacity to engage in most of the activities she loved, and to experience them
with her family.

[41]  Given the
relatively profound nature of the loss to this plaintiff (including compromised
household management and parenting), the chronic pain which she must endure,
the age of the plaintiff, and the very poor prospects for significant
improvement, and, having regard to the similarities between the cases cited by
the parties and the case at bar, I assess the non-pecuniary losses of the
plaintiff at $60,000.

[88]        
The plaintiff in Lamont was 50 years old. Her general damages
were assessed at $60,000.

[89]        
The defendant referred to Ragneborg v.Giesbrecht, 2009 BCSC 110.
The plaintiff was 48 years old. She had complaints of ongoing back and neck
pain that was entirely subjective, against a sedentary background with
significant deconditioning. Burnyeat J. assessed the general damages at
$45,000.

[90]        
In Sisson v. Bailey, 1996 Can LII 1763 (BCSC), Lowry J. assessed
the case of a 51-year old industrial electrician whose difficulties as a result
of his injuries were offset by working as a foreman. The court described his
general damages:

Keith Sisson, who is a 51 year
old industrial electrician, suffered whiplash type injuries to his neck,
shoulder, and back in two rear-end motor vehicle accidents (Oct.ber 29, 1992
and October 1, 1993). The principle issue in assessing an award of damages
against the defendant drivers, who have admitted liability (jointly7), relates
to his lost earning capacity. A past loss of income of $9,190 and special
damages of $1,586 have been agreed. The parties’ positions with respect to
non-pecuniary loss are sufficiently close that no purpose will be served in
attempting to rationalize the difference between them. An award of $30,000 will
properly compensate Mr. Sisson for his pain, his suffering, and the way his
injuries have and will impact on the enjoyment of his life.

[91]        
Considering Mr. Brechin’s age, the intermittent nature of his pain and
its severity, the fact that he is occasionally affected to the extent of taking
some days off work, and the limited effect it has on his recreations and social
relationships, I assess Mr. Brechin’s general damages at $50,000.

[92]        
Like the plaintiff in Sisson, Mr. Brechin submits that his work
as a journeyman electrician may be impaired in the future by the injuries he
has suffered. In Sisson, Lowry J. noted a number of other factors
affecting potential income loss that were unrelated to the motor vehicle
accident:

[8]  In my view, it is quite evident that Mr. Sisson’s
capacity to do the work of an industrial electrician in saw mills has been
impaired by his injuries. I reject as no more than a possibility the suggestion
that the disabling pain he experienced when he returned to saw mill work at the
beginning of this year was attributable to an arthritic condition in his back.
He has no more than a minor disc deterioration that is not uncommon for a man
of his age. But that said, I do not accept that Mr. Sisson can no longer work
as an industrial electrician at all.

[9]  The contention
that he must now accept much lower paying employment is completely undermined
by the testimony of Joseph Boileau who was called in support of Mr. Sisson’s
case. Mr. Boileau is himself an industrial electrician of very long experience
who now operates his own company working largely in saw mills. He knows Mr.
Sisson, has worked with him, and thinks highly of his expertise. In testifying
he effectively offered Mr. Sisson a job as a foreman of a crew of electricians
for a one year project starting next month. As a foreman Mr. Sisson would earn
more than a journeyman and, while he may have to help out with some of the
heavier physical work, he would do much less of it than a journeyman. It is not
that he is unable to tolerate any heavy work. He was certainly able to carry on
at Hydro despite his condition and says he would like to do the same work for
Hydro now if he were to be rehired or were able to obtain the work on a
contract basis. Mr. Sisson’s experience suggests that it is the intensity of
the heavy work journeymen do in the mills that he finds disabling.

[93]        
That is similar to the present case. Mr. Brechin’s situation is that he
will suffer no income loss at all if he continues to work for Fortis. There is
no suggestion that he is vulnerable to being laid off or fired as a result of presently
foreseeable economic forces. His ability to remain employed in what he
considers to be his optimal situation will depend on his continuing to do his
job.

[94]        
Were Mr. Brechin to find working every day at Fortis too demanding, he
could go back to the union hall or to residential electrical work on at least a
part time basis, but would not be a candidate for all available work.

[95]        
There is no question that income earning capacity may be reduced in
circumstances where the plaintiff’s working circumstances have actually improved,
as Mr. Brechin’s have, since the accident. In Brown v. Golaiy, [1985]
26 B.C.L.R. (3d) 353, Finch J., then of this Court, suggested that four
questions ought to be asked:

[1]     whether
the plaintiff has been rendered less capable overall from earning income from
all types of employment;

[2]     whether
the plaintiff is less marketable or attractive as an employee to potential
employers;

[3]     whether
the plaintiff has lost the ability to take advantage of all job opportunities
which might otherwise have been open to him, had he not been injured; and

[4]     whether the plaintiff is less
valuable to himself as a person capable of earning income in a competitive
labour market.

[96]        
In Perren v. Lalari, 2010 BCCA 140, the Court of Appeal, per
Garson J.A. conducted a comprehensive review of the cases and concluded:

[30]  Having reviewed all of these cases, I
conclude that none of them are inconsistent with the basic principles
articulated in Athey v. Leonati, [1996] 3 S.C.R. 458, and Andrews v.
Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229. These principles are:

1.  A future or
hypothetical possibility will be taken into consideration as long as it is a
real and substantial possibility and not mere speculation [Athey at
para. 27], and

2.  It is not loss of
earnings but, rather, loss of earning capacity for which compensation must be
made [Andrews at 251].

[31]  Furthermore, I conclude that there is no
conflict between Steward and the earlier judgment in Pallos. As
mentioned earlier, Pallos is not authority for the proposition that mere
speculation of future loss of earning capacity is sufficient to justify an
award for damages for loss of future earning capacity.

[32]  A plaintiff must always
prove, as was noted by Donald J.A. in Steward, by Bauman J. in Chang,
and by Tysoe J.A. in Romanchych, that there is a real and substantial
possibility of a future event leading to an income loss. If the plaintiff
discharges that burden of proof, then depending upon the facts of the case, the
plaintiff may prove the quantification of that loss of earning capacity, either
on an earnings approach, as in Steenblok, or a capital asset approach,
as in Brown. The former approach will be more useful when the loss is
more easily measurable, as it was in Steenblok. The latter approach will
be more useful when the loss is not as easily measurable, as in Pallos
and Romanchych. A plaintiff may indeed be able to prove that there is a
substantial possibility of a future loss of income despite having returned to
his or her usual employment. That was the case in both Pallos and Parypa.
But, as Donald J.A. said in Steward, an inability to perform an
occupation that is not a realistic alternative occupation is not proof of a
future loss. [emphasis in original]

[97]        
Mr. Brechin has submitted, through counsel, that he has proved “a real
and substantial possibility of a future event leading to an income loss”.
Specifically he points to the times he has imposed on Fortis and they have made
work load and scheduling adjustments to accommodate him. His five absences in
January 2012, have led Fortis to seek an assessment, “to see if [he] can do
[his] job” as Mr. Brechin described it. Counsel submits that there is a “real
and substantial possibility” that Fortis may lay the plaintiff off.

[98]        
That was not exactly the tenor of the evidence. Apart from a general
theme that Mr. Brechin could not remain an employee if he could not do the
work, there was no specific suggestion that he is in any imminent danger of
losing his employment. I think Mr. Brechin’s absenteeism is related to the
level of accommodation he has been extended and that a change in policy might
result in Mr. Brechin’s working through pain that now results in time off.

[99]        
The possibility of a future event is not specifically that Mr. Brechin
will be laid off because of his condition, which is relatively unlikely, given
that the medical evidence suggests that his condition is not disabling, but the
more general vagaries of business that have made employment “for life”, once a
common expectation, highly uncertain. Should Mr. Brechin lose his position for such
a reason he would be put back into a competitive environment where a fraction
of the heaviest work would be lost to him. I think this is compensable on the
basis set out by MacKenzie J. (as she then was) in Moore v. Cabral et al.,
2006 BCSC 920, citing Pallos v. Insurance Corp. (1995), 100 B.C.L.R.
(2d) 260:

[69]   Finch J.A. also noted at [paragraph] 43,
that various actuarial or arithmetic approaches may be taken in assessing an
award for loss of earning capacity, all of which are arbitrary and ultimately,
the duty of the court is to make a "fair assessment of damages."

[70]  Furthermore, Huddart J.A. provided a useful
review of the principles relating to an award for loss of earning capacity in Rosvold
v. Dunlop at [paragraph] 8-12, which were subsequently applied in Paller
at [paragraph] 50. Those principles can be summarized as follows:

1.   The plaintiff is entitled to be put
into the position he would have been in but for the accident so far as money
can do that.

2.   Where a plaintiff’s permanent
injury limits him in his capacity to perform certain activities and
consequently impairs his income earning capacity, he is entitled to
compensation. What is being compensated is not lost projected future earnings
but the loss or impairment of earning capacity as a capital asset. In some
cases, projections from past earnings may be a useful factor to consider in
valuing the loss but past earnings are not the only factor to consider.

3.   The standard of proof to be applied
when evaluating hypothetical events that may affect an award is simple
probability, not the balance of probabilities. Possibilities and probabilities,
chances, opportunities, and risks must all be considered, so long as they are a
real and substantial possibility and not mere speculation. These possibilities
are to be given weight according to the percentage chance they would have
happened or will happen.

4.   The trial judge’s task is to assess
the loss on a judgmental basis, taking into consideration all the relevant
factors arising from the evidence.

5.   Once impairment of a plaintiff’s
earning capacity as a capital asset has been established, that impairment must
be valued. The valuation may involve a comparison of the likely future of the
plaintiff if the accident had not happened with the plaintiff’s likely future
after the accident has happened. As a starting point, a trial judge may
determine the present value of the difference between the amounts earned under
those two scenarios. But if this is done, it is not to be the end of the
inquiry, the overall fairness and reasonableness of the award must be
considered taking into account all the evidence.

6.   Even if a plaintiff is able to earn
the same amount of income from alternative employment, he would still be
entitled to compensation for loss if occupations previously available were
closed to him.

[100]     In this
case, that involves a consideration of the medical evidence; Mr. Brechin’s
age and likely working life; the relative stability of his employment at
Fortis; the possibility that either Mr. Brechin’s condition, or larger
workplace and market forces will change his situation, and the prospects he
could have were that to happen. It seems clear that Mr. Brechin could work but
that to some extent this range of opportunities would be limited at the heavier
end of the work. The degree to which this is attributable to the accident
diminishes over time as age and other factors come into play. I think it would be
an error to assume the same capacity for heavy work in a 50 year old, that one
would find in someone significantly younger. Doing the best I can to assess
these factors, I fix $60,000 for future loss of income due to the diminishment
of his capacity viewed as a capital asset. I have done so, bearing in mind his
present income earning capacity, which is an improvement over the years before
the accident, but that the injuries suffered in the accident may reduce, somewhat,
his broader opportunities to work as an electrician.

[101]     Special
damages to date are agreed at $513. I allow $1,000 for future special damages,
for the cost of occasional treatments or medications. I believe counsel are
agreed as to the proper treatment of any past income loss.

[102]    
In summary I assess damages as follows:

[103]    
Costs follow but may be spoken to if necessary.

“McEwan J.”

________________________________

The Honourable Mr. Justice McEwan